TITLE 10

Courts and Judicial Procedure

Procedure

CHAPTER 49. EXECUTIONS

Subchapter XI. Scire Facias on Mortgage

§ 5061 Occasion for suing out writ; parties and notice.

(a) Subject to the provisions of §§ 5062A, 5062B, 5062C and 5062D of this title, upon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee's heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor's heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.

(b) In addition to the mortgagor, and such mortgagor's heirs, executors, administrators or successors, the following persons shall be necessary parties in every mortgage foreclosure action:

(1) Record owners acquiring title subject to the mortgage (terre tenants) which is being foreclosed upon; and

(2) Persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale pursuant to § 8771 et seq. of Title 9.

(c) The following persons whose real or equitable interests in the real estate may be adversely affected by plaintiff's cause of action shall not be deemed to be necessary parties and shall not be required to be joined as a defendant in mortgage foreclosure actions:

(1) Lien holders; and

(1) Tenants seised of an estate for years or at will.

Notice in writing, however, shall be given to the above classes of persons in the manner prescribed from time to time by the civil rules of the Superior Court of the State. It is the intent of this subsection that written notice be deemed sufficient in lieu of joinder to protect the property interests of the above classes of persons in the mortgaged real estate since those property interests are created and defined by the legal operations of existing statutes and law.

(d) The Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, modes of proof and the manner of notice to persons having an interest in the real estate which relate to mortgage foreclosure proceedings.

(e) Those persons identified in subsection (b) of this section need not be joined as necessary parties in a mortgage foreclosure action when their interest arises subsequent to the filing of the mortgage foreclosure action. Any person acquiring an interest defined in subsection (b) of this section subsequent to the filing of the foreclosure action and at least 30 days prior to the sheriff's sale scheduled in the cause shall be given written notice in accordance with the rules of the Superior Court. Any person acquiring a property interest in real estate within 30 days prior to the sheriff's sale scheduled in the cause shall not be entitled to receive written notice of the sale, the public records of the foreclosure being sufficient notice.

Whenever the dividing line between any 2 counties of this State runs through a tract of land conveyed in mortgage, a writ of scire facias may be sued out in either county in which any part of such tract is situated, directed to the sheriff of the county in which such writ is sued out. The sheriff may make service of the writ, notwithstanding any person or persons liable to such service in and residing in this State may live outside the sheriff's bailiwick. The Superior Court of the county wherein such action is brought may give definitive judgment upon such scire facias with the same effect as if the lands lay wholly within such county.

(a) In connection with any mortgage foreclosure action brought under § 5061 of this title with respect to an owner-occupied 1- to 4-family primary residential property, unless the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages, the defendant must have an opportunity to apply for relief under a federal loss mitigation program for which the defendant may be eligible including, but not limited to, the Home Affordable Modification Program, the Second Lien Modification Program, the Home Affordable Unemployment Program, and the Home Affordable Foreclosure Alternatives Program, together with any proprietary loss mitigation programs offered by the plaintiff for which defendant may be eligible. A plaintiff in a mortgage foreclosure action may establish that it provided a defendant with the opportunity to apply for relief contemplated by this paragraph if, for example, the plaintiff provides the defendant with a list of the applicable loss mitigation programs in which the plaintiff participates and instructions for how to initiate an application for each such program, which list and instructions may be included in the notice of intent to foreclose required by § 5062B of this title.

(b) No judgment may be entered in any mortgage foreclosure action brought under § 5061 of this title with respect to an owner-occupied 1- to 4-family primary residential property, and no owner-occupied 1- to 4-family primary residential property that is the subject of a judgment of foreclosure that has not gone to sheriff's sale as of January 19, 2012, may be sold at sheriff's sale, unless the plaintiff has filed a fully executed affidavit asserting:

(1) That the defendant has been provided with the opportunity to apply for relief under any loss mitigation program for which the defendant may be eligible, as described in subsection (a) of this section, and

(2) That the loan secured by the mortgage for which plaintiff seeks foreclosure is:

a. Not subject to a loss mitigation program; or

b. Is ineligible for any applicable loss mitigation program due to the defendant's failure to apply, or failure to provide required information, or failure to complete the requirements of the program; or

c. Is determined by the plaintiff to be otherwise ineligible for any applicable loss mitigation program.

(c) If an affidavit required by subsection (b) of this section is false with respect to the accuracy of any statement required by paragraphs (b)(1) and (b)(2) of this section, the foreclosure action shall be dismissed by the court without prejudice and a complaint may be refiled by the plaintiff, but no fees or other costs shall be charged to the defendant in connection with the dismissed action.

(a)(1) Except as provided in paragraph (a)(2) of this section, with respect to an owner-occupied 1- to 4-family primary residential property, a mortgage foreclosure action may not be filed until 45 days after a notice of intent to foreclose is sent in the form and manner required by paragraph (a)(3) of this section, which notice may not be sent until the obligor on the loan secured by the mortgage has defaulted on the obligation set forth in the terms of the loan.

(2) The notice of intent to foreclose required under paragraph (a)(1) of this section shall not be required if the property subject to the mortgage has been abandoned, if the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages, if the obligor on the loan secured by the mortgage has voluntarily surrendered the property to the obligee, or if the default has continued after the automatic stay has been lifted or terminated in a bankruptcy proceeding, or if the default has continued after the bankruptcy proceeding has been dismissed.

(3)a. The notice of intent to foreclose required under paragraph (a)(1) of this section shall be sent:

1. To the borrower(s) by certified mail, postage prepaid, return receipt requested, bearing postmark from the United States Postal Service; and

2. To the borrower(s) by first class mail.

b. The notice of intent to foreclose shall:

1. Contain the following heading, in English and in Spanish, in at least 30-point boldface type, at the beginning of the notice:

"NOTICE REQUIRED BY DELAWARE LAW: TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE''

2. Contain the following statement, in English and in Spanish, in at least 14-point boldface type, immediately following the heading:

EMERGENCY FINANCIAL HELP MAY BE AVAILABLE

3. Contain, in English and in Spanish, in at least 14-point boldface type, the phrase

and the telephone number of a contact person or department the homeowner may call to obtain specific instructions on how to reinstate the mortgage loan;

4. Contain a statement, as of the date of the notice, of the nature of the default, the amount required to cure the default and reinstate the loan, including all past due payments, penalties, and fees, and any other actions the homeowner must take to cure the default;

5. Contain a list of approved DEMAP housing counseling agencies and the contact information for each listed agency; and

6. Any other information that the Superior Court shall require.

(4) If the borrower(s) may be eligible to apply for assistance through any proprietary loss mitigation program offered by the plaintiff or under any federal loss mitigation program in which the plaintiff participates, including, but not limited to, the Home Affordable Modification Program, the Second Lien Modification Program, the Home Affordable Unemployment Program, and the Home Affordable Foreclosure Alternatives Program, the potential plaintiff shall include a list of the potentially applicable loss mitigation programs, instructions for how to initiate a completed application for each such program, and a telephone number to call to confirm receipt of an application.

(5) The potential plaintiff (or the servicer sending notice on their behalf) shall include with the notice of intent to foreclose an accounting of the mortgage obligation covering the 12-month period prior to the date of the alleged default. The accounting shall include, at a minimum, a history of all payments made during the 12-month period prior to the date of the alleged default and the potential plaintiff's allocation of those payments to principal, interest, attorneys' fees, other applicable fees, and the allocation of such payments to the payment installments required by the mortgage. The accounting shall also include:

a. The due date for the mortgage;

b. Any other information as the potential plaintiff may be relying upon as the basis for the claim of default; and

c. A certification by the potential plaintiff (or the servicer sending notice on their behalf) that the information contained in the accounting is true and accurate to the best of its knowledge as of the date provided and that the information provided has been relied upon as the basis for the claim of default. Where a servicer provides the certification instead of the potential plaintiff, the servicer shall also identify itself as such and recite in such certification its authority to act on behalf of the potential plaintiff.

(b) As necessary to reflect changes in law, procedure, or loss mitigation options, the Superior Court may prescribe additional or alternate requirements for the form of a notice of intent to foreclose as described under paragraph (a)(3)b. of this section.

(c) The Delaware State Housing Authority shall make available upon request the list of approved DEMAP housing counseling agencies and the contact information for each listed agency required under paragraph (a)(3)b.5. of this section.

(a) An Automatic Residential Mortgage Foreclosure Mediation Program is established.

(b) This section shall apply to mortgage foreclosure actions under § 5061 of this title with respect to owner-occupied 1- to 4-family primary residential properties, unless the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages.

(c)(1) As required pursuant to § 5062D(b)(3) of this title, a notice of foreclosure mediation shall accompany the complaint filed in a mortgage foreclosure action subject to this section, which notice shall notify the defendant of the Automatic Residential Mortgage Foreclosure Mediation Program. A copy of such notice shall also accompany the posted and mailed Notice to Lienholders and Tenants required by the Superior Court Civil Rules.

(2) The notice of foreclosure mediation shall:

a. Contain the following heading, in English and in Spanish, in at least 30-point boldface type, at the beginning of the notice:

"NOTICE REQUIRED BY DELAWARE LAW

YOUR LENDER HAS FILED A FORECLOSURE ACTION AGAINST YOUR PROPERTY. YOU ARE ELIGIBLE TO PARTICIPATE IN MEDIATION. CALL THE DELAWARE ATTORNEY GENERAL'S FORECLOSURE HOTLINE AT 1-800-220-5424 NOW OR FIND A HOUSING COUNSELOR ON THE INCLUDED LIST TO START THE MEDIATION PROCESS.'';

b. Contain the following statement, in English and in Spanish, in at least 14-point boldface type, immediately following the heading:

"Your lender has filed a foreclosure action against your property. You are eligible for mediation with your lender. A mediation conference will be scheduled for you. Please look out for this mediation scheduling notice in the mail. Your lender will not be able to seek judgment against your property until the day after the date for which your mediation conference is scheduled.

In order to effectively participate in mediation, you must meet with a HUD-approved housing counselor and certify to the court your intent to participate in mediation within 30 days of today. You are encouraged to do this immediately; your chances of saving your home may be better the sooner you meet with a HUD-approved housing counselor. Please call the Delaware Attorney General's Foreclosure Hotline at 1-800-320-5424 or contact a HUD-approved housing counselor. A list of HUD-approved housing counseling agencies is also provided in this notice. A housing counselor may be able to assist you with the mediation process and with applying for loss mitigation programs and emergency assistance programs. You also must work with your HUD-approved housing counselor to prepare a proposal for your lender in advance of your mediation conference. A Certificate of Participation form is attached to this notice. If you do not certify your intent to participate in mediation, you may still attend your scheduled mediation conference and meet with a representative of your lender. However, your mediation is less likely to be successful and your lender may choose to seek judgment against your property immediately after mediation.

You must appear in person at your mediation conference. If you are unable to attend the mediation conference on the scheduled date, you may request that your mediation conference be rescheduled for good cause. You must make this request promptly or your request may be denied.'';

c. Contain a list of housing counseling agencies approved by the United States Department of Housing and Urban Development who may be available to provide assistance with the mediation process, along with the contact information for each listed agency;

d. Be accompanied by a Certificate of Participation form, which shall include the following information:

1. The address of the subject property;

2. The following language:

3. A certification substantially in the following form:

4. The name and address of the HUD-approved housing counselor;

5. Such other information as the Superior Court shall prescribe.

e. If a date for mediation has already been scheduled pursuant to paragraph (d)(2) of this section, notify the defendant that the mediation conference is scheduled for that date and attach the mediation scheduling notice; in such event, the form of notice required by this paragraph (c)(2) shall be adjusted to reflect that a mediation conference has already been scheduled.

(3) The Superior Court may also require that the notice of foreclosure mediation be accompanied by such other flyers, forms, and checklists as it deems appropriate.

(4) The Delaware State Housing Authority shall make available upon request the list of approved housing counseling agencies and the contact information for each listed agency required under paragraph (c)(2)c. of this section.

(d)(1) The Superior Court or its delegatee shall schedule a mediation conference and issue a mediation scheduling notice to the plaintiff, the defendant, and all other necessary parties to the action as set forth in § 5061 of this title. The mediation conference must be scheduled for a date that is not less than 45 days from the date the notice of foreclosure mediation was served on the defendant and not more than 75 days from such date. The mediation scheduling notice may be in such form as the Superior Court or its delegatee shall provide. The mediation scheduling notice must inform the parties of the date, time, and place of the mediation conference, the contact information for the mediator if 1 has been assigned, and that all necessary parties, other than the plaintiff and the defendant, must file an appearance in order to be provided with further mediation notices.

(2) [Repealed.]

(3) The Superior Court or its delegatee may, in its discretion and either on its own initiative or in response to a request from a party or the mediator, for good cause shown, reschedule a mediation conference, except that no initial mediation conference may be scheduled sooner than 45 days from the date the notice of foreclosure mediation was served on the defendant without the written consent of the defendant and no initial mediation conference may be scheduled later than 75 days from the date the notice of foreclosure mediation was served on the defendant without the written consent of both the plaintiff and the defendant. If the Superior Court or its delegatee reschedules a mediation conference, the previously scheduled conference shall be canceled and the Superior Court or its delegatee will issue a new mediation scheduling notice to the plaintiff, defendant and all appearing parties. The new mediation scheduling notice shall state that the previously scheduled conference was canceled and shall inform the parties of the date, time, and place of the rescheduled mediation conference and the contact information for the mediator if one has been assigned to act as the mediator at the rescheduled mediation conference.

(4) After a Certificate of Participation has been filed identifying the borrower's HUD-approved housing counselor, the housing counselor shall be provided with copies of all subsequent mediation scheduling notices and other communications to be provided to the borrower as part of the mediation process.

(e)(1) A defendant shall meet with a HUD-approved housing counselor and file a Certificate of Participation no more than 30 days from the date the notice of foreclosure mediation was served on the defendant. The Certificate of Participation shall be filed with the Superior Court or its delegatee and the defendant shall send copies to the mediator and to the plaintiff or, if the plaintiff is represented by counsel, to the mediator and to the plaintiff's counsel, who will promptly forward the Certificate of Participation on to the plaintiff. If a defendant has checked "NO'' with respect to any of the statements required to be included in the Certificate of Participation under paragraph (c)(2)d.2. of this section, above, the mediation conference will be canceled, but this shall not prevent the defendant from requesting that the mediation conference be reinstated at a later date prior to the entry of judgment.

(2) The failure of a defendant to file a Certificate of Participation will not excuse the plaintiff from attending the mediation conference and engaging in mediation in good faith, but the mediator may take the defendant's failure into consideration when making recommendations.

(3) Upon receipt of a duly completed Certificate of Participation from the defendant, the plaintiff shall owe a mediation fee to the Superior Court or its delegatee in the amount set by the Superior Court pursuant to subsection (q) of this section. Notwithstanding the preceding sentence, if the mediation conference has been cancelled as a result of the defendant checking "NO'' on the Certificate of Participation under paragraph (e)(1) of this section above, no mediation fee will be required. The mediation fee required, whether under this section or paragraph (i)(8) of this section below, shall be due and must be paid by plaintiff within 30 days after the eFiling of a completed Certificate of Participation, and shall be in addition to any other filing fees required by law. The Superior Court or its delegatee may in its discretion reschedule any scheduled mediation conference where the mediation fee is overdue pursuant to this paragraph until such time as the mediation fee has been paid .

(f) At least 14 days prior to the date of the mediation conference, the defendant shall provide a completed financial proposal worksheet to the plaintiff, to the mediator, and to such other entities as the Court may require. The Superior Court or its delegatee may prescribe the form of such financial proposal worksheet and any accompanying materials that must be provided by the defendant. The failure of a defendant to provide a complete financial proposal worksheet to the plaintiff will not excuse the plaintiff from attending the mediation conference and engaging in mediation in good faith, but the mediator may take such failure into consideration when making recommendations and may inform the defendant that the failure to provide a complete financial proposal worksheet and accompanying materials, if required, may affect the plaintiff's ability to enter into a loss mitigation agreement or other resolution of the foreclosure.

(g) At least 7 days prior to the date of the mediation conference or such other date as agreed to by the mediator, the plaintiff shall provide the defendant and its housing counselor, if known, a checklist of documents that the plaintiff requires that the defendant bring to the mediation conference, including whether updated versions of existing documents need to be provided. Each party shall also make itself available at least 3 days prior to the date of the mediation conference to discuss the list of documents. The Superior Court or its delegatee may prescribe a form of checklist to be used under this paragraph. If the plaintiff requests at the mediation conference additional documents from the defendant that were not included on the checklist, the mediator may take any failure of the plaintiff to provide a complete checklist into consideration when making recommendations. If the defendant fails to bring the documents required by the plaintiff to the mediation conference and such documents were requested timely under this subsection, the mediator may take into consideration the defendant's failure to provide the documents when making recommendations and may inform the defendant that such failure may affect the plaintiff's ability to enter into a loss mitigation agreement or other resolution of the foreclosure.

(h) The Superior Court or its delegatee may set forth procedures for the provision of information and statements by the parties in mediation, including the use of preliminary position statements. However, the failure of a party to provide a preliminary position statement will not excuse any party from attending the mediation conference and engaging in mediation in good faith, but such failure may be taken into consideration by the mediator in assessing whether the party failing to provide the position statement is engaging in mediation in good faith.

(i) A mediation conference will be held on the day stated in the mediation scheduling notice, and shall be conducted in accordance with the following:

(1) A mediator will oversee the mediation conference and provide guidance as appropriate. However, if multiple mediation conferences are occurring in the same location simultaneously, the mediator may determine that his or her presence is not required for the entirety of the mediation session. In this event, the mediator will inform the parties that they may engage in party-led mediation and that they should seek out the mediator when questions arise and when the mediation conference is complete. The mediation shall be held in a location where fax machines and internet access is available, in order to facilitate the transmission of documents between parties and their counsel.

(2) The plaintiff and the defendant shall appear in person at each mediation conference and must have authority to agree to a proposed settlement, except that if the plaintiff is represented by counsel, the plaintiff's counsel may appear in lieu of the plaintiff to represent the plaintiff's interests at the mediation conference, provided plaintiff's counsel has the authority to agree to a proposed settlement and a representative of the plaintiff who has decision making and settlement authority is available during the mediation conference by telephone. The defendant may be accompanied by a housing counselor and may have legal representation.

(3) At the mediation conference, the parties shall address, among other things, loss mitigation programs offered by the plaintiff for which the defendant could be eligible, along with other potential resolutions that may allow the defendant to continue to own the property or otherwise avoid a foreclosure judgment or sheriff's sale, including without limitation the following options where applicable: bringing the mortgage loan current; paying off the mortgage; a repayment plan to bring the loan current over time; agreeing to vacate in the near future in exchange for not contesting the matter and a monetary payment; offering the lender a deed in lieu of foreclosure; filing bankruptcy proceedings; paying the mortgage default over 60 months; and requesting a loan modification.

(4) The individual appearing at the mediation conference on behalf of the plaintiff will be responsible for receipt of all information requested from defendant and will be responsible for communicating that information to the plaintiff.

(5) The individual appearing at each mediation conference on behalf of the plaintiff shall bring to the mediation conference an updated itemization of all fees and costs, including any other charges and attorneys' fees requested, that must be paid as of the date of the mediation in order to reinstate the loan secured by the property subject to the foreclosure action and an current itemization of all overdue amounts causing that loan to be in default.

(6) At a minimum, the mediator will advise the defendant that:

a. The mediation does not suspend the defendant's obligation to respond to the foreclosure complaint; and

b. Entry of judgment in the foreclosure action may cause the defendant to lose the residential mortgage property.

(7) Absent mutual agreement of the parties, the mediator will have no authority to bind the parties to a resolution, except that the mediator may recommend to the Superior Court that the foreclosure action be dismissed due to the plaintiff's failure to appear for 2 successive mediation conferences. In no event shall any determination issued by a mediator under this program form the basis of an appeal of any foreclosure judgment.

(8) The parties to a foreclosure action may agree in a mediation conference to schedule an additional mediation conference, which fact shall be recorded in the mediation record at the end of the present mediation conference. If the plaintiff has not yet been required to pay a mediation fee under paragraph (e)(3) of this section because the defendant did not file a completed Certificate of Participation in a timely manner, upon the scheduling of the first additional mediation conference after the initial mediation conference, the plaintiff shall be required to pay a mediation fee to the Superior Court or its delegatee in the amount set by the Superior Court pursuant to paragraph (q) of this section. The mediation fee required under this paragraph must be paid by the plaintiff within 30 days of the eFiling of a completed Certificate of Participation, and shall be in addition to any other filing fees required by law. The mediation fee required under this paragraph must be paid by the plaintiff before the date for which the first additional mediation conference has been scheduled. The Superior Court or its delegatee may in its discretion reschedule any subsequently scheduled mediation conference where the mediation fee is overdue until such time as the mediation fee has been paid.

(9) At the conclusion of a mediation conference, the mediator shall sign a mediation record that shall also be cosigned by all parties present at the mediation conference and filed with the Superior Court. The mediation record shall be on such form as the Superior Court or its delegatee shall provide, shall allow the mediator to make recommendations, and shall state:

a. That the mediation process is complete due to the defendant's failure to appear and that the foreclosure action may continue; or

b. That the defendant has failed to appear and an additional mediation conference is being scheduled for the next available mediation day at the plaintiff's request and that no judgment may be entered in the foreclosure action until the day after such date; or

c. That an additional mediation conference is being scheduled for the next available mediation day due to the plaintiff's failure to appear and that no judgment may be entered in the foreclosure action until the day after such date; or

d. That the mediation process was unsuccessful because the parties failed to come to agreement and that the foreclosure action may continue; or

e. That the parties have agreed to an additional mediation conference scheduled for a date specified and that no judgment may be entered in the foreclosure action until the day after such date; or

f. That the parties have reached a mutually agreeable resolution, that the plaintiff agrees that no entry of default judgment will be sought pending the execution of documents memorializing the agreement of the parties, and that the plaintiff will seek to dismiss the foreclosure action upon such execution (or, in the case of a trial mortgage modification, upon the conversion of the trial mortgage modification to a permanent mortgage modification) or take such other actions as may be authorized by the Superior Court; or

g. That the case is not suitable for mediation because:

1. There was improper service of the complaint or of the notices required under this section or under § 5062B of this title, and a new mediation conference will be scheduled after proper service has been made, and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference; or

2. A bankruptcy petition has been filed, mediation is not permitted to continue in accordance with paragraph (i)(12) of this section, and upon termination of the automatic stay, plaintiff shall request that a mediation conference be scheduled and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference; or

3. The subject property is not an owner-occupied 1- to 4-family primary residence and that the foreclosure action may continue; or

4. Such other reasons as the mediator shall state; or

h. That the mediator is recommending that the foreclosure action be dismissed due to the plaintiff's failure to appear for 2 successive mediation conferences; or

i. Such other resolutions as may be agreed to by the parties.

(10) If no mediation record is signed by all parties present at the mediation conference, the mediator shall file a mediation record with the Superior Court stating that the mediation process was unsuccessful or such other recommendations as the mediator deems appropriate.

(11) The Superior Court or its delegatee may arrange a program to allow for volunteer attorneys to provide legal representation to homeowners at mediation conferences.

(12) Where a bankruptcy petition has been filed, mediation shall not be permitted to continue unless either:

a. The automatic stay has been lifted or modified with respect to the defendant's mortgage obligation to the plaintiff; or

b. Mediation is permitted to proceed pursuant to an order or directive of a bankruptcy court. Where the mediation process has previously been cancelled as the result of the filing of a bankruptcy petition but is subsequently permitted to proceed under this subparagraph, plaintiff shall request that a mediation conference be scheduled and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference.

(j) If a mediation conference has been scheduled, the parties may cancel the conference by mutual agreement by filing with the Superior Court or its delegatee a mediation cancellation record signed by each party and the mediator. The mediator shall be permitted to sign a mediation cancellation record on behalf of a party if the mediator discusses the terms of the mediation cancellation record with such party and receives authority from such party to sign on its behalf. Such authority may be granted verbally or in writing. The mediation cancellation record shall be on such form as the Superior Court or its delegatee shall provide, shall allow the mediator to make recommendations, shall state that the parties have agreed that the scheduled mediation conference is not necessary, and shall state any other resolutions as may be agreed to by the parties.

(k) A plaintiff shall not be entitled to attorneys' fees for time spent in a mediation conference if the Court finds that the plaintiff has failed to comply with subsection (i) of this section, or if the plaintiff has requested that the mediation conference be rescheduled due to plaintiff's lack of preparation, or if the plaintiff has requested additional documents that were not included on the checklist provided pursuant to subsection (g) of this section, unless in each case the Court finds reasonable cause for such failure. The mediator shall note any such fact in his or her recommendations on the mediation record.

(l) The mediator may be an employee of the Superior Court, an employee of the Consumer Protection Unit of the Department of Justice, an employee of a nonprofit legal services entity organized in Delaware, or an independent mediator who may be compensated through the funds collected through the Automatic Residential Mortgage Foreclosure Mediation Program. The Superior Court or its delegatee shall determine the qualifications and training required of mediators and shall keep a list of mediators available to participate in the Automatic Residential Mortgage Foreclosure Mediation Program. Mediators will be assigned at the discretion of the Superior Court or its delegatee.

(m)(1) If the parties have reached a mutually agreeable resolution through the mediation process, the terms of the agreement will be memorialized in writing at the conclusion of the mediation conference or, in the case of a canceled mediation conference, promptly upon signing the mediation cancellation record. Promptly thereafter, the parties shall deliver to each other fully executed documents.

(2) Promptly upon receipt of documents executed by the defendant that reflect the agreement of the parties or, in the case of a trial mortgage modification, promptly upon the conversion of the trial mortgage modification to a permanent mortgage modification:

a. If no answer or motion for summary judgment has been filed by the defendant in the foreclosure action, plaintiff shall file a notice of dismissal with the Superior Court; or

b. If the defendant has filed an answer or motion for summary judgment in the foreclosure, plaintiff shall seek to obtain a stipulation of dismissal signed by all parties and file the stipulation with the Superior Court and, if such stipulation cannot be obtained, move for an order of the Superior Court dismissing the foreclosure action.

(3) If the documents fail to reflect a party's understanding of the agreement reached between the parties or if a party fails to execute the documents or if the terms of a trial modification are not satisfied, either party may request that an additional mediation conference be scheduled.

(4) With respect to foreclosure actions subject to this section that have reached a mutually agreeable resolution through the mediation process or otherwise and recorded such fact in the mediation record at the conclusion of a mediation conference or in a mediation cancellation record, notwithstanding any provisions of the Delaware Code to the contrary, no judgment may be entered unless an additional mediation conference has been scheduled pursuant to paragraph (m)(3) of this section, and the date for such additional mediation conference has passed.

(n) Notwithstanding any provisions of the Delaware Code to the contrary, no judgment may be entered in any action subject to this section for which a mediation conference has been scheduled until the day after the date for which such mediation conference has been scheduled.

(o) If seeking a default judgment in an action subject to this section, the plaintiff or plaintiff's counsel must have provided proper service of the notices required under subsection (c) of this section and under § 5062B(a)(3)a. of this title.

(p) None of the plaintiff's or defendant's rights in the foreclosure action shall be waived by participation in the Automatic Residential Mortgage Foreclosure Mediation Program.

(q) The Automatic Residential Mortgage Foreclosure Mediation Program shall be funded with the mediation fees collected pursuant to paragraphs (e)(3) and (i)(8) of this section. The Superior Court shall set the amount of the mediation fee in an amount to approximate and reasonably reflect the costs necessary to defray the expenses in whole or in part of the Automatic Residential Mortgage Foreclosure Mediation Program. The Superior Court or its delegatee shall collect the mediation fees and disburse funds from the collection of such fees to pay mediators, administrative expenses and other operating costs of the program. Any funds remaining from the collection of mediation fees in excess of the Automatic Residential Mortgage Foreclosure Mediation Program's direct operating costs in the immediately preceding quarter may be distributed to reimburse any Delaware-based HUD-approved housing counseling agencies or nonprofit legal services entity organized in Delaware that have provided assistance in the Automatic Residential Mortgage Foreclosure Mediation Program for a portion of their costs of participating in the program.

(r) The Superior Court may, by rule, administrative directive, or otherwise, make all necessary rules respecting the Automatic Residential Mortgage Foreclosure Mediation Program. For example, the Superior Court may allow for the use of Delaware nonprofit legal service providers in addition to the use of HUD-approved housing counselors wherever the use of HUD-approved housing counselors is required or permitted under this section. Nothing in this legislation shall impair the authority of the Superior Court to institute procedures to manage its caseload.

(s) As necessary to remain consistent with the purpose of the Automatic Residential Mortgage Foreclosure Mediation Program and related state and federal foreclosure prevention programs, the Superior Court may by rule adjust the mechanics of the Automatic Residential Mortgage Foreclosure Mediation Program set forth in this section.

(t) The Superior Court or its delegatee shall collect and compile statistics on the effectiveness of the Automatic Residential Mortgage Foreclosure Mediation Program, which shall be made available to the public on a periodic basis. The entity responsible for the compilation of statistics shall be provided with copies of all Certificates of Participation, all mediation records, and all mediation cancellation records. Parties shall provide the entity responsible for the compilation of statistics with such nonprivileged information as may be necessary to evaluate or report on the effectiveness of the Automatic Residential Mortgage Foreclosure Mediation Program.

(a) A complaint to foreclose a mortgage in an action subject to this chapter shall contain a statement as to whether the mortgage foreclosure action is subject to the Automatic Residential Mortgage Foreclosure Mediation Program and, where it is not subject to the Automatic Residential Mortgage Foreclosure Mediation Program, a statement of the reason why it is not subject to that program.

(b) In an action subject to the Automatic Residential Mortgage Foreclosure Mediation Program, in addition to any other requirements set forth in the Delaware Code or by the Superior Court, a complaint to foreclose the mortgage shall be accompanied by:

(1) If applicable, an affidavit stating that the notice of intent to foreclose was sent to the borrower(s) in accordance with § 5062B(a)(3) of this title and the date of said notice;

(2) A statement of the debt remaining due and payable supported by an affidavit of the plaintiff or the mortgage holder or the agent or attorney of the plaintiff or mortgage holder; and

(3) The notice of foreclosure mediation described under § 5062C(c)(2) of this title, which notice shall be attached to the front of the copy of the complaint served on the defendant.

(c) Notwithstanding any provisions of the Delaware Code to the contrary, no answer to a complaint in a mortgage foreclosure action subject to the Automatic Residential Mortgage Foreclosure Mediation Program shall be deemed untimely if it is filed on or before the date of any scheduled mediation conference.

If the defendant fails to appear at the return day of the scire facias, definitive judgment therein, as well as all other judgments to be given upon such scire facias, shall be entered that the plaintiff have execution by levari facias directed to the proper officer.

The writ of levari facias awarded upon any judgment for the sale of any such tract, as mentioned in § 5062 of this title, shall be directed to the sheriff of the county wherein the judgment was given. The sheriff shall proceed in the same manner as is prescribed in other cases of the sale of lands upon such execution process, and may on the writ sell the tract of land in the whole, and altogether at one and the same time, and make return thereof to the court out of which the writ is issued. Upon confirmation of such sale by the court the sheriff shall make a deed to the purchaser conveying the whole as fully as if the same had been wholly situated in his or her bailiwick. Any deed so made shall be recorded in each of the counties in which the land is situated. Notice of any such sale shall be set up in at least 5 of the most public places in each of the hundreds in which the land or any part thereof is located.

Under a levari facias, awarded as described in this subchapter, the mortgaged premises shall be taken in execution, and after notice given in the same manner as in other cases of the sale of lands upon execution process, shall be exposed to public sale, and upon such sale and confirmation thereof, shall be conveyed by deed to the purchaser; or if there be no sale for want of bidders, return shall be made accordingly, and thereupon a liberari facias may issue and be executed in the same manner, and with like effect, as provided in other cases of the sale of lands upon execution process.

The person to whom any lands and tenements shall be sold, or delivered, under § 5065 of this title, and such person's heirs and assigns, shall hold the same, with their appurtenances, for such estate, or estates, as they were sold, or delivered for, discharged from all equity or redemption, and all other incumbrances made and suffered by the mortgagor, the mortgagor's heirs, or assigns; and such sale shall be available in law. Such sale, or delivery, shall not create any further term, or estate, to the vendees, mortgagees, or creditors, than the lands and tenements were mortgaged for.

Any surplus of the proceeds of sale of mortgaged premises, after satisfying the principal debt in the mortgage, with interest and costs, shall be rendered to the owner of the premises at the time of sale. Until the surplus is so rendered, the officer making the sale shall not be discharged upon the record of the court to which the sale is returnable.